In a recent Ohio Court of Appeals case – Cleveland Heights v. Cohen, 2015-Ohio-1636 – the appeals court reversed the defendant’s convictions for disorderly conduct and child endangering. The court found that neither charge was supported by the evidence.

For child endangering, the offender must create a “substantial risk” to the child by violating a duty of care. Here, the defendant’s act of pushing his wife off of his back neither created any risk to the children nor violated a duty of care to them.

Likewise, for disorderly conduct, the offender must engage in “fighting, in threatening harm to persons or property, or in violent or turbulent behavior.” The defendant pushing his wife off of his back did not constitute “engaging in fighting” or other violent behavior.

Police Called to Domestic Dispute with Children in the Home

The charges here arose out of a domestic dispute involving the defendant and his wife. They had been married for 20 years and have four children together. Two of the couple’s children, aged 13 and 10, were at home at the time of the dispute.

Wife’s Testimony

The dispute arose from an argument about going to the gym. The husband (defendant) said, “I want a divorce” and “I’m taking the kids.” The wife got very angry. The defendant went upstairs and told their two children to gather some clothing because he was taking them away for the night.

When he went upstairs the wife started running after him “lunging at him” and “jump[ing] on his back, constantly” “to hold him down” and stop him from taking their children. Each time she jumped on his back, the defendant kept “kept pushing me off.”

At some point during the dispute, the wife sustained injuries to her forehead and nose. She testified that after her husband left with the children, she went upstairs to her bedroom to call police because she wanted her children back. She testified that as she entered her bedroom, which was full of mirrors, she realized for the first time that she had a bump on the middle of her forehead and that her face was bleeding.

She testified that her injuries must have occurred when the defendant was upstairs in their son’s room, getting pajamas for him. She testified that one of the times he pushed her off his back, she “probably slipped” on the hardwood floor in her gym socks and “fell off backwards,” “[r]ight into the wall * * * [and] [i]nto the corner of [her son’s] closet,” hitting her head on the top corner of the closet and causing her injuries. She denied that her husband ever hit her or choked her. She testified that he was just “trying to get me off his back so he could handle the kids.”

She testified that she called the police “just [as] a first response” “to help me get my kids back.” She testified that when the police officers arrived, she spoke with them and they photographed her injuries. She testified that she was not seriously injured and went to work the following day.

She further testified that one of the officers was “very assertive” with her, pressuring her to make a domestic violence report. She testified that she told the officers that she did not “feel the need to report anything” and refused to sign anything.

Defendant (Husband)’s Testimony

The defendant husband claimed that there was “no aggression” on his part, that he was just pushing his wife off and defending himself when she jumped on his back. He testified that her injury to the middle of her face occurred when she hit her head on their son’s closet “the last time that she fell off.”

Although he was not sure exactly how her injuries occurred, he acknowledged on cross-examination that he must have pushed her “pretty hard” for her to “bounce off [the] wall and hit the closet door.” With respect to her other injuries, he testified that it was “possible” that he elbowed her while pushing her off his back and speculated that the injuries she sustained “on the front” “probably happened” when she fell on the floor.

He testified that he saw that she was bleeding and considered whether he should stop and take care of her before leaving but that she then came at him again, pushing him into a window at the end of the hallway and breaking it.

He testified that he then ran downstairs where the children were waiting and left the home with them. When he learned that charges had been filed against him, he turned himself in.

Daughter’s Testimony

The couple’s then 13-year-old daughter, also testified. She testified that she was upstairs when she heard her parents arguing downstairs. She testified that she heard her father tell her mother that he was going to take the kids and that he wanted a divorce. She further testified that she heard her mother pleading with her father not to leave and not to take the kids. She testified that her father then came upstairs and told her and her brother to get their belongings together because the three of them were going to leave for the night.

She testified that she first went to her room and collected her belongings and then went to her brother’s bedroom to help him. At some point, her parents came into her brother’s bedroom. She testified that while her father was in her brother’s bedroom, standing next to her, her mother jumped on his back. She testified that she saw her mother jump on her father’s back “three times or two times or something like that” and that her father “was just trying to walk away from it.”

She testified that her brother had already left the room and that she was approximately three feet in front of her brother’s closet, heading out of the room, when she heard a fall. She turned around and saw her mother on the floor. She testified that her mother was holding her head like she fell into the closet. She testified that she did not see any blood or other signs of injury on her mother and that she never saw her father elbow her mother in the face, get on top of her, choke her or anything like that.

She testified that her father then told her to take the keys and go to the car. She testified that she followed her father’s instructions, took her brother to the car and that her father followed her out.

Trial Court Decision

The trial court found the defendant not guilty of domestic violence in violation of R.C. 2919.25(A), but guilty of the lesser included offense of disorderly conduct. The trial court also found him guilty of child endangering in violation of R.C. 2919.22(A).

Child Endangering Conviction Reversed on Appeal

On appeal, the defendant first argued that his conviction for child endangering in violation of R.C. 2919.22(A) was not supported by sufficient evidence and should, therefore, be vacated. The appeals court agreed.

No person, who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age, shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support. Proof of recklessness is also required.

Thus, to support a conviction for child endangering under R.C. 2919.22(A), it must be established, beyond a reasonable doubt, that the defendant:

(1) recklessly

(2) created a substantial risk to the health or safety of one or more of his children

(3) by violating a duty of care, protection or support.

The defendant argued his child endangering conviction should be overturned because none of the witnesses who testified at trial “even hinted at any risk to the health or safety of the children” — “let alone a substantial one” — and the city failed to present “a shred of evidence that [he] violated a duty of care, protection, or support to his children.”

The city maintains that sufficient evidence existed to support his conviction based on: (1) His testimony that the altercation between him and his wife “occurred all over the house” while “his wife was with the children”; (2) His daughter’s testimony that she was upstairs gathering her belongings when her mother jumped on her father’s back; (3) evidence that his wife’s injuries resulted from a “violent scene” in which she “was pushed[] and at the very least hit her head on the closet, fell forward and sustained a laceration of her face as well as a swollen nose” and (4) evidence that the altercation “affected the children.”

The appeals court disagreed.

R.C. 2919.22(A) is “‘aimed at preventing acts of omission or neglect’” involving a child. As such, it is not necessary to show an actual injury or a pattern of physical abuse by the defendant in order to support a conviction under R.C. 2919.22(A).

A child endangering conviction may be based upon isolated incidents or even “a single rash decision” in which a parent recklessly puts his or her child’s health or safety at risk.

However, “‘[t]o prove the requisite “substantial risk” element, * * * there must be some evidence beyond mere speculation as to the risk of harm that could potentially occur due to a single imprudent act.’”

Here, the defendant was not guilty of child endangering.

There was no claim that the children were in any way part of the altercation involving their parents. There is no evidence in the record that the children were at any risk of harm — much less a substantial risk of harm — to their mental or physical health or safety as a result of his actions that evening.

The children were not in the room when the couple was arguing. Although the daughter testified that she saw her mother jump on her father’s back and her father push her mother off him two or three times, the city presented no evidence that his action in pushing his wife off his back presented a substantial risk to the daughter’s health or safety.

All three testified that the husband’s actions were directed at “protecting” the children — not harming them.

Simply because the two children were present in the home at the time of the altercation, may have witnessed part of the dispute and may have been upset or confused by their parents’ words and actions does not establish that the husband violated a duty of care, protection or support to his children or that he created a substantial risk to the health or safety of his children.

As such, the court reversed his conviction for child endangering.

Disorderly Conduct Charges Reversed on Appeal

The disorderly conduct statute at issue states: “No person shall recklessly cause inconvenience, annoyance or alarm to another, by * * * [e]ngaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior.”

The defendant argues that the city failed to present sufficient evidence that he acted with the requisite mens rea, i.e., that he recklessly caused inconvenience, annoyance or alarm to his wife. He contends because he and his wife testified that he “simply pushed his wife off his back as she continued to jump on him,” he could not be said to have “perverse[ly] disregard[ed] a known risk” or to have been acting “with heedless indifference to the consequences” of his actions.

He also argues that the trial court erroneously concluded that he was “engaging in fighting” when he was “merely attempting to disengage himself from his wife” and that there was insufficient evidence to support his conviction for disorderly conduct because the city failed to prove that any annoyance, inconvenience or alarm his wife experienced was “caused by” his “engaging in fighting.”

The court of appeals found insufficient evidence to support a conviction for disorderly conduct.

First, there was no evidence that Cohen at any point “threatened harm” or “engag[ed] in fighting” or other “violent or turbulent behavior” that evening.

When viewed in the light most favorable to the city, the evidence at most establishes that:

(1) when the defendant pushed his wife off his back “the last time * * * she fell off,” he pushed her off with sufficient force to cause her to “bounce” off the wall and slip or fall forward, hitting her head on the closet, and

(2) at some point during the altercation, he elbowed her in the head as he was pushing her off his back.

There was no evidence that the husband was the aggressor at any point during the altercation with his wife, that he was at any time involved in any type of physical combat or intense, forceful interaction with his wife or that his actions in pushing his wife off his back were acts of aggression.

The witnesses testified that each time he had physical contact with his wife that evening it was because she initiated the contact, “lunging at him” and “jumping on his back.”

Thus, based on the record, his conduct cannot be said to have constituted “engaging in fighting” or “violent or turbulent behavior.”

Even if his actions in pushing his wife off his back could be deemed to constitute “engaging in fighting” or “violent or turbulent behavior,” the city nevertheless failed to establish the requisite causal connection between such conduct and any annoyance, inconvenience or alarm experienced by his wife.

He pushed his wife off his back numerous times and each time, she “went back again” and jumped on his back.

Although the wife was “really frantic” and “crying and yelling” when he arrived at the residence, there was no evidence this was “caused by” the defendant’s actions in pushing her off his back (or any other conduct by the defendant).

To the contrary, the wife testified that she was “upset” and had called police because her husband told her he wanted a divorce and had taken their children away for the night, not because the defendant had pushed her, had been “fighting” with her, or had otherwise exhibited any “violent or turbulent behavior.”